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Guns and Mental Illness

Title 18 U.S.C. § 922(g)(4) criminalizes gun possession by (among others) anyone “who has been committed to a mental institution.” This includes relatively brief commitments, and from 1992 until 2007 this covered anyone who had ever been so committed, with no opportunity for relief. Title 18 U.S.C. § 925(c) did authorize the Secretary of Treasury to provide discretionary relief from this prohibition, but since 1992 an appropriations bar enacted by Congress prohibited the government from using funds to decide § 925(c) petitions (which would chiefly involve attempts to get relief from the ban on gun possession by felons, but would likewise apply to people who had been committed to mental institutions).

But the NICS Improvement Amendments Act of 2007, enacted in January 2008, and codified in a Note following 18 U.S.C. § 922 changed this — but I just don’t know how much. Here are the most relevant provisions (which are only a small part of the Act) (emphasis added):

[Sec. 101(c)(1)] No department or agency of the Federal Government may provide to the Attorney General any record of an adjudication related to the mental health of a person or any commitment of a person to a mental institution if–

(A) the adjudication or commitment, respectively, has been set aside or expunged, or the person has otherwise been fully released or discharged from all mandatory treatment, supervision, or monitoring; …

[Sec. 101(c)(2)(B)] In the case of an adjudication related to the mental health of a person or a commitment of a person to a mental institution, a record of which may not be provided to the Attorney General under paragraph (1), including because of the absence of a finding described in subparagraph (C) of such paragraph, or from which a person has been granted relief under a program established under subparagraph (A) or (B), or because of a removal of a record under section 103(e)(1)(D) of the Brady Handgun Violence Prevention Act, the adjudication or commitment, respectively, shall be deemed not to have occurred for purposes of subsections (d)(4) and (g)(4) of section 922 of title 18, United States Code….

So this would suggest that as soon as someone is “fully released or discharged from all mandatory treatment, supervision, or monitoring,” the § 922(g)(4) disability immediately disappears. From a “once committed, forever disabled” model, the law has apparently shifted to a “once released from mandatory supervision, immediately allowed” model. What’s more, I assume that in many situations (such as temporary commitments of people who appear suicidal), people would be quickly released from mandatory supervision, unless they have really serious mental illnesses. I assume that most states don’t have the money to actual impose mandatory treatment, supervision, or monitoring for more than a short time for more than a small fraction of all people who have been mentally committed.

Yet at the same time, other parts of the Act seem to contemplate the creation of a system of “program[s] for relief of disabilities” through which people can petition to get their rights back — a system required for federal commitments, and pressured through the threat of withholding of funds for state commitments. Does this mean that mere release from mandatory supervision does not suffice? Or is this just as a mechanism for those situations where a person wasn’t released from mandatory supervision?

In any case, I thought I’d mention this for the benefit of lawyers who actually litigate this, but don’t know about the 2007 Act (which is only codified in a Note after the statute, and is thus easy to miss), for the benefit of people who are otherwise interested, and for my own benefit: If you can give me some thoughts on the statutory construction here, or pointers to how this actually plays out in court, I’d be much obliged. Note that I’m not speaking here about the proper policy with regard to guns and those who have once been mentally committed (a difficult question), or even the Second Amendment issue — just about the text of the federal statute.

UPDATE: Reader Thomas E. Maciejewski (of Michel & Associates, one of the few firms that I know that routinely practices firearms law) suggests that this language only applies to commitments by the federal government — generally of servicemen and veterans — on the theory that the only proceedings “a record of which may not be provided to the Attorney General under paragraph (1)” are ones that “[n]o department or agency of the Federal Government may provide.” And another reader suggested that servicemen and veterans are indeed generally subject to “mandatory treatment, supervision, or monitoring,” so that a federal proceeding to remove such a disability would indeed be required. Not sure whether that’s right, but I wanted to note it.